Parker v. Catholic Bishop

Watekmah, J. It must be conceded, as is contended by appellant, that the city of Chicago had no power, by vacation of alleys or otherwise, to transferto the Bishopof Chicago, or any other person, any property interest of hers or any right appertaining to said property. And it must also be conceded that if the city of Chicago should attempt by proceedings under the law of eminent domain to condemn any property for the purpose of transferring it to the Bishop of Chicago, that such proceedings would not be the taking of private property for a public use, and could not be maintained. Appellant contends that the alley can not be vacated, and her easement therein destroyed, for the purpose of transferring the vacated alley to the Bishop of Chicago, because to do so would be a taking of private property not for a public use. We entirely agree with appellant in this. The fact that the Bishop of Chicago is the owner of or interested in certain lots in said Starr’s subdivision, in no way or wise affects the right of appellant in this case, adds to or takes from the validity of the council proceedings vacating said alley, or makes valid or invalid anything charged in the bill which has been done in the premises. As is shown by the bill it does not appear that the common council of the city of Chicago have attempted to transfer anything to the Bishop of Chicago, or vacated the alley for the purpose of giving anything to him or anybody else. What the council did was, upon certain conditions, to declare the alley vacated. The premises of appellant do not impinge upon that portion of the alley vacated. It is, to be sure, the case that either John F. Starr, who made said subdivision, or the owners of the lots infringing on that portion of the alley vacated, do, by such vacation, become entitled to the alley so vacated, and may use and occupy the same. Whether John F. Starr, or the Catholic Bishop of Chicago, by reason of such vacation, becomes entitled to use and occupy the vacated alley, can not be told from the allegations in this bill, because the facts relative to the subdivision by said Starr are not sufficiently stated, and it is immaterial in this case to whom such vacated alley will go. Appellant, if injured, is injured not because the vacated alley goes to the Bishop of Chicago or John F. Starr, but because her right to pass over the same is taken away. The demurrers to the bill admit the vacation, and that appellant by such vacation of said alley has been damaged, but it does not follow from this that the city had no right to make such vacation without first having ascertained and paid to her the amount of said damage. Bo portion of her property was taken by such vacation, but only a right appurtenant to her property was destroyed. If there has been a direct physical disturbance or deprivation of any right which appellant had in connection with the property, and which gave to it an additional value, and she by reason of such disturbance or deprivation has sustained a special damage with respect to her property in excess of that sustained by the public generally, there can be no question of her right to recover damages from the city; but it is only where property is actually taken for public purposes, that before taking or entering upon it the value thereof must be ascertained and paid to the owner. Where there is merely a disturbance, interference with, or deprivation of a right appertaining to property, the public authorities are not bound, .before interfering with such right, to ascertain its value and to make compensation. The existence of such rights and that any damage is done by interference therewith is frequently a disputed question, and if the public authorities were in all instances before they proceeded to any public improvement obliged to ascertain and make compensation for such rights, they could proceed to but few public improvements without first making all the world parties defendant to a suit for the ascertainment of all damages that might in any way be caused by such improvements. Peoria & R. I. R. R. Co. v. Schertz, 84 Ill. 135; Stetson v. C. & E. R. R. Co., 75 Ill. 74; Hoag v. Sweitzer, 61 Ill. 294; Patterson v. C. D. & V. R. R. Co., 75 Ill. 588; Culberton & Blair P. & P. Co. v. City of Chicago, 111 Ill. 651. Bor is this a case of diversion to another use of property dedicated for a special purpose. The city has simply abandoned the public easement or right of passage in this alley, leaving it to the law to determine in whom the fee of such alley and the right to use the same by such vacation reverts, and leaving to property owners who claim to have been by such vacation specially damaged, their right of action against it. While the manner in which this ordinance was treated and passed by the city council may be censurable, yet such irregular or unwise proceeding does not make the ordinance void. The decree of the court below dismissing the bill is affirmed. Decree affirmed.